Can you patent a hairdo?

Yep, and you can copyright and trademark it, too

The question of whether you can patent a particular hairstyle came up in a weekly DesignBox creative session. It was posed by a DesignBoxer who was acting as if they were game show host Chuck Woolery, he of the high-volume wraparound slick 'do. It wasn't clear if it was a serious question or an attempt at humor, but as I am an intellectual property lawyer, the question tickled my little grey cells.

The simple answer: Yes, it is possible.

As odd as this may seem, of the U.S. patents issued since 1976 (the year that the patent database is searchable back to), 179 are related to hairdos. So don't think that because a new invention doesn't require elaborate mechanical gears or electrical circuitry, it isn't patentable. Many of the most valuable patents are relatively simple and elegant.

So, how do we patent Chuck Woolery's hairdo?

First, we have to determine if the hairdo is a "functional" design or an "ornamental" design. Functional designs are based on utility. An ornamental design may be a part of something which has some utility, but it contains additional decorative elements separate from the functional parts. If Woolery's hair is able to maintain its shape under hot TV lights, refract the bright spotlights into attractive shapes, or cushion the fall of a suicidal game show contestant, then we could say that it is functional. However, if the hairdo is only really there to complement a pronounced chin, then it's ornamental.

Second, we have to figure out if the hairdo is novel. Why? Because you can't get a patent for reinventing the wheel, the beehive hairdo or the "Woolery Wooly Chunk."

The deal made between the U.S. Patent Office (acting for the benefit of all the people and government) is that the inventor gets a monopoly on the invention for a limited time (20 years for the utility patent and 14 years for the design patent) if the inventor discloses to the general public how to recreate the invention after the patent expires.

Imagine if for 20 years no one else could have a hairdo like Woolery's--sounds like it might well be in the public interest.

Third, we have to figure out whether the hairdo is "obvious" to one skilled in the art of hairdos--someone who knows all the "prior art" hairdos. If it's obvious, we don't get the patent. Obviousness is a subjective standard which, like the Supreme Court's obscenity definition, is not susceptible to an easy definition, but examiners say they know an obvious patent claim when they see it. Prior art is anything that existed before the invention did, and that includes prior patents, publications and products. In the patent office, an examiner would do a search of prior U.S. and foreign patents to see if there are similar or identical inventions. So, if the Chuck Woolery hairdo has four distinctive components, the patent examiner tries to find them elsewhere. They'd check on Alex Trebek, Vanna White and maybe even the old Bill Cullen hairdo to see if the Chuck 'Do was obvious over one of those old game show 'dos. If the examiner believes all of the components exist in other patented hairstyles, the claim is rejected.

We (probably acting through a patent attorney or agent) could then either make arguments to show why the Chuck 'Do is so distinctive, and that the combination of the Alex Trebek bouffant, Joe Garagiola side look and the Vanna White cowlick don't even begin to disclose (suggest) this fabulous new 'do. Or we could amend our claim to include the special dipsy doodle wave on the side of the Chuck 'Do.

If the examiner agrees this time, we pass Go, collect $200 and get our Notice of Allowance. Then we give the patent office back our money to print the patent, and on any given Tuesday morning a spanking new United States Patent covering the Chuck 'Do will issue.

Patenting is only the first step with the hairdo. The next questions are: Can you copyright a hairdo? And can you trademark a hairdo?

Well, the copyright protects a creative idea expressed and "fixed" in a medium, and that Chuck 'Do, with all the hairspray to keep it firmly in place--well, it's fixed in a medium. The weird thing about copyright is you don't have to do anything to get it. As soon as you come up with your idea and make it, boom--it pops into existence. So, sketch a drawing of the Chuck 'Do, make a 3-D CAD drawing of it, carve it out of marble like Michaelangelo's David or build it out of discarded packaging materials, and it's covered by copyright.

But, being such a distrustful world, we like to hold something in our hands. Like the Wizard of Oz says to the Tin Man and the Cowardly Lion, what makes you special is if you have your Certificate of Copyright Registration. It shows that you are a creative person. And the copyright office throws in some neat swag to boot, if you lay out the $30 bucks to get the piece of paper. If you sue someone and you win, you not only get damages--the other side has to pay your attorney's bill. Pretty neat. Also, you can send copies of your paper to the U.S. Customs and they'll stop anybody trying to bring in an imitation from overseas. Gotta stop those Chuck 'Do knockoffs at the border.

The last step is trademarking our intellectual (such as it is) property. I don't know about you, but the "Chuck 'Do" is a much sexier and cooler name than the "Chuck Woolery Wooly Chunk Hairdo." You also don't lose your dentures trying to say it three times fast. We see if anyone is using our great name by searching the trademark records online (www.uspto.gov/main/trademarks.htm). Then, because we want to be absolutely sure, we have a search done that checks with each state and a gazillion databases and reference materials of unregistered uses and company names and all the domain names on the Internet to see if anyone else is using the name. If that's clear, we file for a federal trademark and if the examiner agrees that we're not confusingly similar to anyone else's mark, they publish the Chuck 'Do in an official gazette. Then everyone else gets a shot to say that it's too close to their mark. If they don't step up in 30 days, the Chuck 'Do can use that fancy ®, which means that a trademark is registered on the Principal Register of the United States Patent and Trademark Office.

And there we are. Now get started on patenting/ copywriting/ trademarking your own 'do!

Peter D. Aufrichtig is a member of DesignBox. This frustrated engineer in an intellectual property lawyer's suit has patented high-tech, low-tech and no-tech inventions from complex software and continuously variable automatic transmissions to gloves and sporting goods to a beach blanket with a hole in it and a crossword puzzle with the answers already filled in. He also wrangles trademarks and copyrights and unfair competition matters.Few things are as satisfying to him as representing creative folks in broadly varied businesses with elegant solutions to intractable problems. Peter can be contacted at peter@asapc.com.To learn more about DesignBox, see www.designbox.us.